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Saturday, April 04, 2009

Activist judges

It is clear that there are judges that just ignore the law and rule according to their proclivities. We need not a one of them actually sitting on the bench, anywhere.

However, every time a ruling goes against your position on issues is not evidence that a judge, or judges are being activist.

I have read both the California Supreme Court decision overturning the ban on gay marriage and I have read the Iowa Supreme Court decision. The rulings are significantly different.

The California case: was it constitutional have a a civil union system for same-sex couples and a marriage system for opposite sex couples if they were fundamentally the same system, just called something different. This is the 'separate but equal' issue that is well established to be unconstitutional at the federal level, and the California court found it was also unconstitutional at the state level. There is no activism necessary to find that position. It is clear cut. The California Court did address other items that makes it an important part of the Iowa decision which went right to the issue of denying gays the right to marry because their choice of partner was same sex.

The County seeks to undercut the plaintiffs’ equal protection claim by asserting the plaintiffs are not similarly situated to heterosexuals. The County references this threshold test in this case and asserts theplaintiffs are not similarly situated to opposite-sex couples so as tonecessitate further equal protection analysis because the plaintiffs cannot“procreate naturally.”

Therefore, with respect to the subject and purposes of Iowa’s marriagelaws, we find that the plaintiffs are similarly situated compared toheterosexual persons. Plaintiffs are in committed and loving relationships,many raising families, just like heterosexual couples. Moreover, officialrecognition of their status provides an institutional basis for defining theirfundamental relational rights and responsibilities, just as it does forheterosexual couples. Society benefits, for example, from providing samesexcouples a stable framework within which to raise their children and thepower to make health care and end-of-life decisions for loved ones, just as itdoes when that framework is provided for opposite-sex couples.In short, for purposes of Iowa’s marriage laws, which are designed tobring a sense of order to the legal relationships of committed couples andtheir families in myriad ways, plaintiffs are similarly situated in everyimportant respect, but for their sexual orientation. As indicated above, thisdistinction cannot defeat the application of equal protection analysis

But both Courts make an assumption that those opposed to gay marriage seemingly refuse to consider:

The County initially points out that section 595.2 does not explicitlyrefer to “sexual orientation” and does not inquire into whether eithermember of a proposed civil marriage is sexually attracted to the other.Consequently, it seizes on these observations to support its claim that thestatute does not establish a classification on the basis of sexual orientationbecause the same-sex civil marriage ban does not grant or withhold thebenefits flowing from the statute based on sexual preference. Instead, theCounty argues, section 595.2 only incidentally impacts disparately upon gayand lesbian people.The County’s position reveals the importance of accurately andprecisely defining the classification in analyzing all equal protectionchallenges. The manner in which a classification is defined impacts theutility of an equal protection analysis as a means of revealing discrimination.Therefore, it is critical that a court reviewing the statute identify the truenature of the classification.It is true the marriage statute does not expressly prohibit gay andlesbian persons from marrying; it does, however, require that if they marry,it must be to someone of the opposite sex. Viewed in the complete context ofmarriage, including intimacy, civil marriage with a person of the opposite sexis as unappealing to a gay or lesbian person as civil marriage with a personof the same sex is to a heterosexual. Thus, the right of a gay or lesbianperson under the marriage statute to enter into a civil marriage only with aperson of the opposite sex is no right at all. Under such a law, gay orlesbian individuals cannot simultaneously fulfill their deeply felt need for acommitted personal relationship, as influenced by their sexual orientation,and gain the civil status and attendant benefits granted by the statute.

The Court recognizes that at the core, sexual orientation is a fundamental characteristic of people and creating laws based on the characteristic is constitutionally flawed.

Instead, a gay or lesbian person can only gain the same rights under thestatute as a heterosexual person by negating the very trait that defines gay and lesbian people as a class—their sexual orientation. In re Marriage Cases, 183 P.3d at 441. The benefit denied by the marriage statute—the status of civil marriage for same-sex couples—is so “closely correlated with being homosexual” as to make it apparent the law is targeted at gay and lesbian people as a class. See Lawrence, 539 U.S. at 583, 123 S. Ct. at 2486, 156 L. Ed. 2d at 529 (O’Connor, J., concurring) (reviewing criminalization of homosexual sodomy and concluding that “[w]hile it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under suchcircumstances, [the] sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class.”). The Court’s decision in Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996), supports this conclusion. Romer can be read to imply that sexual orientation is a trait that defines an individual and is not merely a means to associate a group with a type of behavior. See Romer, 517 U.S. at 632, 116 S. Ct. at 1627, 134 L. Ed. 2d at 865–66 (holding an amendment to a state constitution pertaining to “homosexual . . . orientation” expresses “animus toward the class that it affects”).

By purposefully placing civil marriage outside the realistic reach of gay and lesbian individuals, the ban on same-sex civil marriages differentiates implicitly on the basis of sexual orientation. See Kerrigan, 957 A.2d at 431 n.24; Conaway v. Deane, 932 A.2d 571, 605 (Md. 2007). Thus, we proceed to analyze the constitutionality of the statute based on sexual orientation discrimination.

Recognizing the situation as presented is not activism, it goes to the heart of the issues. Finally, the reasons WHY there is an anti-gay marriage ban were addressed. I hear these reasons all the time and the court addresses them well.

The County has proffered a number of objectives supporting the marriage statute. These objectives include support for the “traditional” institution of marriage, the optimal procreation and rearing of children, and financial considerations. The first step in scrutinizing a statutory classification can be to determine whether the objectives purportedly advanced by the classification are important. “The burden of justification is demanding and it rests entirely on the State.”

I am not going into the Court's reasoning, in every case it is straight forward and clearly points out that the objectives are not met in any way by the law as written. In the most fundamental way, the Court asks the question: does the gay marriage ban protect or promote traditional marriage. The answer is clearly no to anyone that is willing evaluate consequences. Does the gay marriage ban encourage more people to marry? No. Does the gay marriage ban encourage more people to have children? No. Will gay marriage cause straight couples to avoid marriage? No. Will gay marriage cause straight couples to have less children? No. These are obvious to anyone willing to consider them.

My issue is always individual rights. Infringe on my rights to protect others. The gay marriage ban does not do that. The ban does not protect the rights of others. Gay marriage does not stop straight couples from marrying; gay marriage does not prevent straight couples from raising children. And arguments that gay marriage does not support the growth of healthy children ignores that many marriages - gay and straight, do not have children as a goal.

If you support bans on gay marriage, show me where the infringement of my rights is necessary to protect someone elses rights. Please, do not start with the argument that there is no Constitutional right to marriage. Your ignorance would be clear.